Criminal Justice (Abolition of Death Penalty) Bill, 1984: Second Stage.

Wednesday, 13 February 1985

Seanad Eireann Debate
Vol. 107 No. 3

Page of 11

Question proposed: “That the Bill be now read a Second Time.”

Mr. Ross:The first section of the Bill: “No person shall suffer death for any offence”, is the crux of the matter. In other words, the death penalty should be finally and totally abolished from the Statute Book. The death penalty was abolished, as some Members will know, in 1964 for all but a very few specified offences. In 1981 this very Bill was introduced in this House by the Coalition Government of the time. It was introduced by the Minister for Justice at that time, Deputy Mitchell. What happened was that this Bill was passed by this House by a substantial majority, by 35 votes to 18. Before the Bill could get to the Dáil the Government of the day fell and so it could not be passed through both Houses. Surprisingly, this Bill was not revived by this Government when it came into power in late 1982 nor, surprisingly, is it part of the programme for Government, but I suspect that that is due to [278] omission rather than conviction. Nevertheless, as far as I remember, it is a part of Labour Party policy and the Labour Party are, of course, a constituent element of this Government. In 1981 Deputy Mitchell, the Minister for Justice at the time, described this Bill as an essential measure of law reform. He also said, and I quote: “Abolition of the death penalty was right in principle”. I see no reason why the Government should have changed their point of view in that time.

During the debate on that Bill the Fianna Fáil Party opposed it unanimously, as they have a habit of doing. They opposed it on various grounds, but the principal one appeared to be what they called the extraordinary circumstances of the time, which were, presumably, the activities of subversive organisations in this country. That situation remains and it is likely to remain and there is no foreseeable end to that despite the best efforts of the Government.

The situation is neither better nor worse at the moment. I do not want to anticipate what the Government's attitude will be to this Bill, their own Bill, but I hope they will welcome it; I hope the Government will not come down with the line that “of course we are in agreement in principle with the Bill but just at this moment it does not seem to us to be a particularly good idea”, because that is a cop-out. That will be the case if they do not want to take a stand on it for every hour of every day from now until eternity.

This Bill is not about a matter of time; it is about a matter of principle and it is about the death penalty. I hope we do not have from the Government or, specifically, from the Fine Gael element, a holding operation that really their heart is in the right place but they do not want to see this go through just at this moment. What I would appeal for, and what would be the most acceptable solution to this problem, is for all the parties to allow a free vote. There is no great tradition on the part of the Opposition, particularly at the moment, to allow free votes on matters of public interest or controversy, nor have they had a particularly long tradition of allowing people to take the road [279] of their conscience. But I suggest that on a Bill of this sort, there is no room for party political conflict; there is no room for the Whip to be used as it was used last time. It should be non-contentious in party political terms.

I introduced this Bill because, like so many other people, I believe that in principle and in practice judicial killing on all occasions is wrong. I see no reason why the State should have the power to execute a man; it is the ultimate form of execution. The State is condemning someone to a fate of execution because the person has in these specific cases murdered. That is not only degrading; it is hypocritical. I also find the on-going death cell culture particularly ghoulish and horrifying. The whole aura of execution culture is a very good and effective way of selling newspapers. There is continuously and there has been speculation every time a garda has been murdered about whether the sentence will be commuted or not. We may say that we knew all along it was going to be commuted and execution was not on the cards. The newspapers have a field day. In Britain, about a year and a half ago during the death penalty debate the newspapers had a field day with descriptions of the death cells, what people ate for their last meal and so on, all treated in a morbid way. I would like to see that sort of culture and that sort of mood abolished forever.

One of the reasons, often the principal reason — although those in favour of the death penalty are inevitably confused about the reasons for their positive approval of the death penalty — has always been that it is a deterrent. There is a strange contradiction in their argument here. I cannot see how the death penalty acts as a deterrent. I cannot see how you can justify keeping it on the Statute Book when it has not been used for 30 years. Does anybody who goes out to kill somebody else really believe that they are themselves going to be hanged for it? Because the death penalty has not been used for 30 years it is in some way redundant. It is not, presumably in the eyes of the potential murderer, a real threat. [280] Yet, in the debate in this House three years ago it was maintained that it was a significant deterrent and should be kept on the Statute Book to deter people from killing gardaí, prison officers and other people in the category of section 3 of this Bill. That does not hold water — unless the death penalty had been used. It has not been used. There is no evidence at all for the deterrent argument which is inconclusive. There is no evidence that the pattern of crime will change as a result of this. Expert criminologists will always tell you that it has been a principle of criminal activity down the centuries that detection is a far more effective way of deterring than the severity of the penalty. In the Middle Ages when people were executed for stealing such things as apples, the greatest number of petty crimes such as picking pockets were committed during public executions.

One of the arguments for not bringing forward this Bill at present has been that all death sentences are still mandatory and have been commuted. That is tantamount to saying “Ah, well, it is a bad law maybe but it does not matter because it is never enforced.” That is absolutely true. This remains on the Statute Book but if it is a bad law it should be taken off the Statute Book. Those who want to keep it on the Statute Book must be consistent and say that it will or it might be used. They have to be honest about it. You cannot have it both ways. You cannot have it on the Statute Book and say we will keep it there but we will not use it. That shows contempt for the law and a total disregard for the statutes of this country. There are circumstances in which the death penalty might be used, and that is why I think it is extremely important that it should be removed.

There is a very disturbing trend in America in certain states towards using the death penalty again. There is a most unpleasant repetition of these very public executions which are going on and which appeal to the basest instincts of human beings. They do that. That trend has not, thankfully, yet spread through Europe. But if we have the death penalty on our books, if we have the possibility of the [281] use of the death penalty, I can see a very realistic scenario when a killing of the most unpleasant and vicious nature occurs public opinion will demand — public opinion frequently demands — the death penalty. I am not at all sure that public opinion is behind me in this. Where public opinion demands the death penalty for someone who has committed a most dreadful crime then I can see a situation whereby a weak Government may decide that the death penalty is on the Statute Book and that therefore it will be used. They see no reason in that situation why they should not yield to pressure from significant pressure groups.

It does not matter which way public opinion stands on this issue at present. Indeed, in Britain they have continuously kept capital punishment out while the opinion polls have continuously said that the majority are in favour of it. We are not here to yield to every opinion poll. We are here to lead public opinion on this sort of matter and on occasions to defy it. This is an occasion where I believe public opinion should be led and defied if necessary. It seems that if public opinion demands the death penalty in certain circumstances it will be merely a cry for revenge from public opinion which a Government could yield to. All we would be doing is perpetuating a violent society. All we would be doing would be increasing the violence which we are ourselves condemning. We would be murdering the murderers, so to speak, and become murderers ourselves.

The European trend and the European pressure is very much in line with what I am saying. I think it is only in Turkey in Europe and in no EC country that the death penalty is retained. The UN also has made several recommendations urging the countries of the world to reduce the number of offences for which the death penalty is used. As a Christian, democratic, civilised country we have no right to be out of line with our European counterparts on this. I would like to know why we are.

One of the most obvious reasons why those who advocate the retention of the [282] death penalty do so is because of the problem which we have with terrorists and illegal organisations, both in the North of Ireland and very much in the Republic of Ireland. The issue of terrorism is not relevant to the principle of the Bill. In Britain in the recent debate they tried to isolate terrorism as a reason, as an exception and as the only circumstances in which the death penalty should be used. It would be utterly wrong for any Government of this country to execute terrorists for any offence, however heinous. I believe this not just as a matter of principle which I do sincerely accept but also as a matter of practice, because all we would be doing if we executed terrorists for crimes which have been committed against the security forces — and these are the crimes on the whole to which this Bill refers—would be to make martyrs of evil men.

There is no doubt that the effect of hanging, with all the build-up there is to it, would be to create an aura and a mystique around the people who have done wicked things. The sight of IRA coffins in this country would become a recruiting agent for the IRA. We have enough martyrs. We do not want any more martyrs. These people should be put away but they should not be executed. There is very little doubt that there is a certain type of subversive, and a certain type of person who wants martyrdom, who will go out and commit a dreadful murder or other crime in order to be executed. There is a certain type of psychological misfit who is seeking that sort of notoriety. If we execute such people we will be playing straight into their hands. That is what is on the Statute Book at the moment and that is what this Bill is intended to prevent.

This Bill includes — it would be more appropriate to talk about it on Committee Stage — what is known as the 40-year rule which is a minimum sentence for the crimes specified in section 3 of 40 years imprisonment. This was part of the original Bill and it is a part of the Bill which I do not like because I do not like mandatory sentences. I do not believe in mandatory sentences; I believe that every [283] crime has a specific and a different motive and deserves different, specific treatment. The 40-year rule was put in the original Bill because there is a very powerful lobby which includes the gardaí and the prison officers who for very understandable reasons wish the death penalty to be retained. The reasons are simple in that they believe — I think wrongly — that it gives them some form of protection. The 40-year rule was introduced as a balance to reassure these people that anyone committing such a crime would go to jail for what was virtually the rest of their lives. I do not believe in mandatory sentences and if the Second Stage of this Bill is passed, as I hope it will, I will be with my colleagues putting down an amendment to remove that clause.

The most important reason for abolishing the death penalty is the possibility of a mistake. There have been several documented cases of mistakes, of people being hanged in error. Hanging is a fairly final solution: it is also one which cannot be remedied. There have been attempts to give posthumous pardons in Britain for people who have been hanged wrongly. That is as important a reason for taking it off the Staute Book as any other, because nothing justifies in any way the taking of an innocent human life. To keep this on the Statute Book will give us the power to do this, and if we exercise it in time we will make a mistake.

Mr. Durcan:I am glad we are discussing this matter at this time. It is appropriate that the Oireachtas should discuss the question of capital punishment and its abolition. The present time is an appropriate time to discuss it. I do not accept the motives as to why the matter is being raised at this time and I do not laud the apparent lack of ingenuity on the part of the proposers of this measure in putting forward a measure which is identical to a measure which was brought before this House by a Fine Gael-led Government in October of 1981. Senator Ross is following the parliamentary tactic adopted by him here a little over a year ago when [284] he put down an amendment introduced by this Government in relation to another measure in another place and defeated there. I suggest his reason for raising the matter at this time is not sincerity, that he is motivated by sensationalism and by reasons which do not necessarily relate to the principle behind this measure. This Government indicated some months ago that they would be outlining shortly their programme for legislation for the forthcoming Dáil and Seanad session. At that time, in the latter weeks of 1984, I did not hear any mention of an anxiety to see that this matter should be included in the legislative programme for this session. As a supporter of this Government, and as somebody who will support the Government on their legislative programme, I can understand why at this time the parliamentary session should not be burdened with something outside that programme, bearing in mind the fact that parliamentary time is limited.

I would like to make it quite clear that the Fine Gael Party in principle favours the abolition of the death penalty. Prior to the 1981 general election in the programme for Government 1981-86 published at that time, at page 37 under the heading “Justice”, we stated and I quote from paragraph 6 of that page:

Legislation will be introduced to abolish capital punishment and substitute long term mandatory prison sentences.

Following that commitment, given by us prior to the 1981 general election, we speedily introduced legislation to deal with this matter. That legislation was introduced in this House on 15 October 1981 by the then Minister for Justice, Deputy Jim Mitchell. That legislation was the Criminal Justice Bill, 1981 which fell with the dissolution of the Dáil in the early weeks of 1982. What the then Minister said speaking on Second Stage in this House reflects the view of this party still. I quote from volume 96, column 218 of the Official Report of 15 October 1981:

This Bill proposes to abolish the [285] death penalty and to substitute imprisonment for life. It also provides that a minimum period of imprisonment must be served for treason and certain murders.

In column 219 the Minister continued:

For my part — and I believe I speak for the great majority of people — I am completely opposed to the taking of life, whether by the State or by anyone else, and I believe that the time has now come for this country to finish the job that was begun in 1964 and to remove completely from the Statute Book the right of the State to inflict death on any person for whatever reason in the future.

I believe deeply in the sacredness of human life. The right to life is precedent to all other rights, for when a person's life is ended all other rights of that person are of no further consequence. Moreover, at a time when so many human lives are being taken on this island to the near universal abhorrence of the population, it is timely that the State should give clear expression to that abhorrence by the symbolic act of repudiating its own right to deliberately take life in any circumstances.

That view expressed at that time reflects the view of this party at this time. It is no harm to reflect on and recall the provisions of the Criminal Justice Act, 1964 because that is the Act which still retains capital punishment on our Statute Book for certain purposes. Those purposes are, the crimes of treason or the committing of certain murders, the murder of members of the Garda Síochána or prison officers or murder of diplomats and for certain other offences against military law. It was the view of the Oireachtas in 1964 that capital punishment in respect of these crimes would have a deterrent effect. The view was also expressed at that time that as our Garda were an unarmed force they needed this protection. That view is held by many people today.

Society has developed considerably in the past 20 years, and the way people [286] think has developed considerably. The attitude of people to this question has changed considerably. At present two arguments are frequently propounded. On the one hand we have the person who will say that the protection of the State is of the utmost importance and that the officers of the State, the Garda Síochána, the prison officers and, indeed, people holding elected office although they are not currently covered by statute, and anybody representing the State in any matter of this nature, should receive the utmost protection and that the utmost sanction of the law should be available against anybody who commits the crime of murder against somebody under these circumstances.

I remember some years ago reading Brian Faulkner's biography — in fact, I got it from the Library today — because he had an interesting comment on this. He held office in another part of this island as Home Affairs Minister. I quote from page 25 of Brian Faulkner's Memoirs of a Statesman. He refers to discussions he had with the British Home Secretary who had a similar responsibility in Britain to consider whether the death penalty should be applied or whether the matter was appropriate for the royal prerogative. Brian Faulkner said:

I adopted a similar approach on the four occasions when this problem faced me. Two were reprieved and two were not. They were the four most difficult decisions I have ever taken, but I am convinced they were right. They helped me to learn the importance in public life of never going back on what one has done. I have never believed that society should abandon the use of the ultimate sanction, capital punishment, when the safety of its citizens is at stake.

That reflects one side of the coin. It reflects the view of those who will say that the ultimate sanction should be available under particular circumstances such as those envisaged in the Act of 1964.

Most people give expression at times to that point of view when some heinous [287] crime is committed in our society which affects members of the Garda or which affects a prison officer. We say instantly for a moment that the people involved in such a crime should suffer the ultimate penalty.

An Leas-Chathaoirleach:My apologies, Senator Durcan, for interrupting you, but the Leader of the House has an announcement to make.